Court: Get tested or pay your own premiums

It costs so much to provide health insurance for your employees that you may be frustrated when you see some of them engaging in unhealthy behavior that ultimately drives up the premiums you pay. All the medical problems that accompany smoking, substance abuse and eating poorly are major drivers of premium inflation.

What if you could encourage workers to engage in healthy behaviors through a wellness program that includes an assessment of their current health? The EEOC has been actively pursuing legal challenges against employers that try to do so. Many wellness programs that require health screenings, the EEOC argues, violate the ADA’s prohibition against mandatory medical testing.

The commission recently took that argument to court—and lost.

Recent case: At issue was a wellness program run by plastics manufacturer Flambeau, Inc. In the program’s first year, Flambeau gave $600 to employees who agreed to take part in a health risk assessment and biometric test.

The next year, the company upped the ante: “Voluntarily” participate in the program in order to continue receiving employer-paid health coverage. The information collected was used to assess employee health in general and set premiums and prescription co-pays.

Employees who refused to undergo testing were placed on a COBRA continuation coverage plan and had to pay the entire cost for their insurance.

An employee who refused to participate and lost his coverage complained to the EEOC. It sued on his behalf, alleging that conditioning insurance coverage on taking medical tests violates ADA prohibitions on employer-mandated medical tests.

The court disagreed and sided with Flambeau. The judge said the testing was strictly designed to control medical costs, the information was aggregated and participation was voluntary and not a condition of employment. No word yet on an appeal. (EEOC v. Flambeau, No. 3:14-CV-00638, WD WI, 2015)

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